Restoring "Life, Liberty, and the Pursuit of Happiness" in Our Constitutional Jurisprudence: An Exercise in Legal History

By Charles, Patrick J. | The William and Mary Bill of Rights Journal, December 2011 | Go to article overview

Restoring "Life, Liberty, and the Pursuit of Happiness" in Our Constitutional Jurisprudence: An Exercise in Legal History


Charles, Patrick J., The William and Mary Bill of Rights Journal


INTRODUCTION ................................................. 458

I. PLACING THE DECLARATION IN LEGAL AND HISTORICAL CONTEXT ..... 461

II. A BRIEF HISTORIOGRAPHY OF "LIFE, LIBERTY, AND THE PURSUIT OF HAPPINESS" AS A MATTER OF LEGAL THOUGHT, WITH A FOCUS ON "HAPPINESS" ............................................... 470

III. PLACING THE INTERRELATIONSHIP OF "LIFE, LIBERTY, AND THE PURSUIT OF HAPPINESS" IN THE CONTEXT OF AMERICAN CONSTITUTIONALISM . . . 477

A. Restoring the True Meaning of the Preservation of uLife, Liberty, and the Pursuit of Happiness" in Constitutional Thought ............. 481

B. 'Life, Liberty, and the Pursuit of Happiness " and the Embodiment of the Representative Government .............................. 490

C. Eighteenth-Century Legal Thought and the Constitutional Theory Behind Preservation of "Life, Liberty, and the Pursuit of Happiness" ...... 502

IV. APPLYING THE PRESERVATION OF "LIFE, LIBERTY, AND THE PURSUIT OF HAPPINESS" TO MODERN CONSTITUTIONALISM ..................... 517

CONCLUSION - OUR HAPPY CONSTITUTION ........................... 523

INTRODUCTION

On July 6, 1776, John Hancock sent letters to each ofthe colonial assemblies announcing the adoption of the Declaration of Independence.1 In these letters, Hancock stated that the Declaration had two significant legal effects. The first was that "all connection between Great Britain and the American Colonies" had been dissolved, so as to "declare them free and independent States," and that each colony should proclaim this "in the way [it] shall think most proper."2 The second effect was a structural alteration to the colonial governments, for each colony's charter was expressly tied to England's system of government. Therefore, Hancock requested that "the people ... be universally informed" of this change, and that the Declaration be "considered as the ground and foundation of afuture Government," both at the State and national level.3

Hancock's instructions are significant because they illustrate that the very essence of American government was the guarantees embodied in the Declaration of Independence. However, as insightful as Hancock's instructions are, they do not end the historical inquiry. As to the constitutional importance ofthe Declaration, they leave many questions unanswered. Did the founding generation agree with Hancock's assessment? Did the newly independent State governments have to embody the principles in the Declaration, or was this merely an exercise in political rhetoric?4 What effect, if any, did the subsequent Articles of Confederation and superseding Constitution have on the guarantees and grievances within the Declaration?

As a matter of history, answering these questions has proven difficult, with the Declaration gaining acceptance as part of our social and international identity. Nevertheless, working through these questions is essential if the United States Supreme Court is ever to truly acknowledge the Declaration's preservation of "life, liberty, and the pursuit of happiness" in the pantheon of our constitutional jurisprudence.5 Perhaps providing the answer to these questions is difficult because the Declaration is often mistaken as embodying actionable natural rights or some form of judicial presumption of liberty.6 For instance, many associate the Declaration's reference to "life, liberty, and the pursuit of happiness" as the embodiment of a libertarian ideal.7 They view the phrase as embodying protections for economic liberties8 and supporting the political belief of limited governmental intrusion. At the same time, many people view "life, liberty, and the pursuit of happiness" as protecting broad natural rights in addition to the enumerated rights guaranteed by the Bill of Rights. Take, for example, an interview in which I took part, which predicted the outcome of the landmark Second Amendment case oîMcDonaldv. City of Chicago9 In response to my historical analysis, it was asserted that I was wrong because I did not understand the Declaration's guarantee of natural rights; an ideal, no doubt, many Americans identify with the sacred text. …

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